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04/21/89 Steve Polka, v. Robert S. Turner

April 21, 1989

STEVE POLKA, PLAINTIFF-APPELLANT

v.

ROBERT S. TURNER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

538 N.E.2d 640, 182 Ill. App. 3d 705, 131 Ill. Dec. 265 1989.IL.581

Appeal from the Circuit Court of Cook County; the Hon. Ronald J. Crane, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. COCCIA and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

In this opinion, we consider whether a complaint bearing the date stamp of the clerk of the circuit court indicating it was processed after the running of the limitations period for the action may be considered timely filed where counsel presents facts to establish the complaint was delivered to the clerk's office within the limitations period.

The following facts are pertinent to our Disposition.

On December 5, 1985, plaintiff was allegedly injured when he fell on defendant's driveway. He subsequently brought suit in the sixth municipal district of the circuit court of Cook County. The complaint in that action bears the date and time stamp of the circuit court clerk's office indicating it was filed on December 8, 1987. Interestingly, the stamp indicates it was affixed to the complaint at 1:21 a.m. The back of the last page of the complaint contains a cashier's register stamp which indicates the filing fee was paid on December 8, 1987. The summons is also stamped December 8, 1987. Neither of those markings included a time designation.

On January 7, 1988, defendant moved to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) on the ground that the time for filing plaintiff's action expired on Monday, December 7, 1987, in accordance with section 13-202 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13-202). Plaintiff filed a response, asserting that although the complaint was stamped December 8, 1987, it was delivered into "the custody and control" of the clerk's office on December 3, 1987, and was effectively filed at that time.

Attached to plaintiff's response were the affidavits of two of plaintiff's counsel's employees. The affidavit of Christine Lambros stated that she prepared the summons and complaint in plaintiff's cause and that, on December 3, 1987, gave those documents to Mary Lou Byrne, a co-worker, for "immediate filing" with the circuit court clerk in Markham, Illinois. Mary Lou Byrne's affidavit stated that on December 3, 1987, she delivered "a group of pleadings along with a blank check for fees" to that office.

A hearing on defendant's motion was held on March 10, 1988. On the basis of the pleadings, affidavits, and authority cited by counsel, the court ruled that such delivery was not sufficient to constitute a proper filing, concluding that the date indicated by the clerk's stamp must govern the determination of when a complaint was filed. Taking judicial notice of the regular business hours of the clerk's office, the court stated that although the stamp indicated it was affixed to the complaint at 1:21 a.m., such was immaterial given that the date, not the time, controlled determination of when a complaint was filed. The court granted defendant's motion. This appeal followed.

Opinion

Essentially, plaintiff's argument on appeal is that the affidavits of Lambros and Byrne overcome prima facie proof, in the form of the clerk's stamp, that the complaint was filed on December 8, 1987. (See Ayala v. Goad (1988), 176 Ill. App. 3d 1091, 531 N.E.2d 1040.) Plaintiff contends the affidavits establish that the complaint was timely filed five days earlier when then "tendered" to the clerk of the circuit court, relying primarily on Hamilton v. Beardslee (1869), 51 Ill. 478, to support that argument. We agree Hamilton controls here. However, we disagree with plaintiff's reading of that case and conclude a more accurate interpretation of Hamilton commands a different Conclusion than plaintiff suggests.

Hamilton involved an action by defendant to vacate a default judgment entered in plaintiff's action for assumpsit on the ground that the declaration had not been timely filed 10 days before commencement of the return term. Defendant's counsel moved to set aside the default, swearing that he examined the case file twice during the return period and found no declaration. He swore that he again examined the case file on the return day and found a declaration which bore no file mark. Plaintiff's counsel swore he prepared the declaration on January 21, 1869, the second day of the return term, and on that date, sent it with one of his employees to be filed with the court clerk. The employee ...


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